Citation Nr: 0027577
Decision Date: 10/18/00 Archive Date: 10/26/00
DOCKET NO. 92-13 208A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to a disability rating greater than 30
percent for the residuals of an injury to the left ankle.
2. Entitlement to a disability rating greater than zero
percent for depression, secondary to the service-connected
left ankle condition.
3. Entitlement to service connection for a low back
disability, secondary to the service-connected left ankle
condition.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARINGS ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
Vito A. Clementi, Counsel
INTRODUCTION
The appellant served on active duty from August 1977 to
August 1981 and from October 1981 to October 1983.
This appeal arose from a February 1992 decision of the
Department of Veterans Affairs (VA) Regional Office in
Columbia, South Carolina which denied the appellant's claim
of entitlement to an increased disability rating for his
service-connected left ankle disability. He duly appealed to
the Board of Veterans' Appeals (the Board). The appellant
testified at a personal hearing held before the undersigned
in March 1997, at which time his representative raised the
issues of entitlement to service connection for a psychiatric
disability and a back disability, both claimed as secondary
to his service-connected left ankle disability. In April
1997, the Board determined that further development of the
evidence with respect to the increased disability rating was
necessary and remanded the claim. The Board also noted that
the appellant had raised additional issues, including
entitlement to service connection for a back disorder and for
a psychiatric disability; entitlement to a total rating based
on individual unemployability due to service-connected
disabilities; and an extraschedular rating for the service-
connected ankle disability. These issues were referred to
the RO.
In an October 1997 RO rating decision, a disability rating in
excess of 30 percent was again denied for the service-
connected left ankle disability. In a February 1998 RO
rating decision, service connection was denied for a back
disability, claimed as secondary to the service-connected
left ankle disability. In October 1998, service connection
was granted for the degree of aggravation of the appellant's
non service-connected depression due to his service-connected
left ankle disability. A noncompensable disability rating
was assigned for that degree of aggravation. The appellant
appealed the denial of service connection for the back
disability and the disability rating assigned for the
depression. The appellant testified at a second Board
hearing before the undersigned in January 2000.
The record further reflects that by rating decision dated in
October 1997, entitlement to a total disability evaluation
based upon individual unemployability was denied. The
appellant was advised of the denial by letter dated in
December 1997. The appellant did not file a Notice of
Disagreement within one year. See 38 U.S.C.A. § 7105;
38 C.F.R. §§ 20.201, 20.302.
Through his representative in February 2000, the appellant
argued that because in its October 1997 rating decision, the
RO deferred consideration of the issues of service connection
for a low back disorder and for depression, denial of his
claim of entitlement to a total disability evaluation based
upon individual unemployability was a denial of due process.
The appellant further argued that this tolled the one-year
period for filing a Notice of Disagreement. (See Informal
Brief of Appellant, dated February 10, 2000, page 19). Thus,
the appellant argues that the claim for a total disability
evaluation based upon individual unemployability is presently
under appellate status, and that it should be remanded.
The Board has carefully considered the appellant's
contention, but finds it without support in law. It is well-
settled that the filing of a Notice of Disagreement initiates
the appellate process, and absent such an expression the
Board does not have jurisdiction to consider an appeal. See
Malincon v. West, 12 Vet. App. 238 (1998); Brannon v. West,
12 Vet. App. 32 (1998). As to the appellant's specific
argument, the Board cannot remand a matter over which it has
no jurisdiction, which is conferred by a Notice of
Disagreement. The Board believes the failure of an RO to
adjudicate a claim may be the subject of an appeal. However,
that appeal must be commenced by the timely filing of a NOD.
The RO's failure to adjudicate the TDIU claim in October 1997
was not properly appealed to the Board and the Board cannot
take jurisdiction over it. This matter is again referred to
the RO for consideration, particularly in light of the
Board's decision, below.
The matter of an extraschedular rating for the service-
connected left ankle disability will be discussed in
connection with that issue in the Reasons and Bases section
below.
FINDINGS OF FACT
1. The residuals of the appellant's left ankle fusion include
symptoms of significant functional loss and pain and
severe degenerative changes.
2. The severity of the appellant's depressive disorder and
PTSD, in its whole, includes disturbances of mood and
motivation and difficulty in establishing and maintaining
effective work and social relationships.
3. Competent medical evidence has been obtained indicating
that approximately half of the severity of the appellant's
mental disorder is attributable to depression resulting
from the service-connected left ankle disorder.
4. Competent medical evidence of record has been obtained
indicating that the appellant has incurred a back
disorder, secondary to his service-connected left ankle
disorder.
CONCLUSIONS OF LAW
1. The criteria for a 40 percent rating for a left ankle
disorder are met. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5003, 5010 and 5270 (1999).
2. The criteria for a rating of 30 percent for major
depression have been met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.130, Diagnostic Code 9434 (1999).
3. A low back disorder was incurred secondary to the service-
connected left ankle disorder. 38 U.S.C.A. § 5107(b)
(West 1991); 38 C.F.R. §§ 3.102, 3.310 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant contends that the severity of his service-
connected left ankle disorder and secondarily service-
connected depression is greater than is contemplated by the
currently assigned ratings. As to his left ankle disorder,
the appellant in effect arguing that the symptoms of its
functional loss and pain is tantamount to a degree of
disability warranting assignment of a 40 percent disability
rating. As to the severity of his service-connected mental
disorder (i.e., depression secondary to the service-connected
left ankle disorder), the appellant posits that its severity
cannot be disassociated from the non-service-connected
depression and post-traumatic stress disorder (PTSD), and
that under governing law, VA must evaluate and rate his
psychiatric impairment in its whole.
The appellant further contends that he has developed a low
back disorder secondary to the service-connected left ankle
disability. He argues that the back disorder was caused by
an altered gait which developed from the left ankle pain.
By law, the Board's statement of reasons and bases for its
findings and conclusions on all material facts and law
presented on the record must be sufficient to enable the
claimant to understand the precise basis for the Board's
decision, as well as to facilitate review of the decision by
courts of competent appellate jurisdiction.
See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999);
Gilbert v. Derwinski,
1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. § 7104(d)(1) (West
1991).
With this requirement of law, the Board will first review the
law generally applicable to the appellant's claims. The
Board will then review the pertinent facts of record, discuss
the law particularly applicable to the issue under
consideration, and proceed to its analysis of each claim.
The Generally Applicable Law
Disability ratings - in general
The law provides that determinations as to disability
evaluations are made through the application of a schedule of
ratings, which is predicated upon the average impairment of
earning capacity. Separate diagnostic codes identify various
disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a) and
Part 4.
The degree of impairment resulting from a disability involves
a factual determination of the current severity of the
disability. Francisco v. Brown, 7 Vet. App. 55, 57-58
(1994); see also Solomon v. Brown, 6 Vet. App. 396, 402
(1994). In resolving this factual issue, the Board may only
consider the specific factors as are enumerated in the
applicable rating criteria. See Massey v. Brown, 7 Vet. App.
204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628
(1992). Because the appellant's claim for a disability rating
greater than assigned for depression secondary to the left
ankle disorder has been in continuous appellate status since
the October 1998 rating decision granting service connection,
the evidence to be considered includes all evidence proffered
in support of the original claim. Fenderson v. West, 12 Vet.
App. 119 (1999).
Secondary Service Connection
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991).
Determinations relative to service connection will be based
on review of the entire evidence of record. 38 C.F.R. §
3.303(a) (1999).
Secondary service connection shall be awarded when a
disability is proximately due to, or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (1999).
See Harder v. Brown, 5 Vet. App. 183, 187 (1993).
Applicable law provides that "disability" in the context of
veterans benefits law means any impairment of earning
capacity, and such definition of disability mandates that any
additional impairment of earning capacity resulting from an
already service-connected condition, regardless of whether or
not the additional impairment is itself a separate disease or
injury caused by the service-connected condition, shall be
compensated. Allen v. Brown, 7 Vet. App. 439, 448 (1995).
Thus, when aggravation of a veteran's non service-connected
condition is proximately due to or the result of a service-
connected condition, such veteran shall be compensated for
the degree of disability over and above the degree of
disability existing prior to the aggravation.
Well grounded claims
Under 38 U.S.C. A. § 5107(a), an applicant for benefits has
the "burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded." Such a claim has been defined by the Court
to be "one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible" in order meet the burden established in the
statute. Kandik v. Brown, 9 Vet. App. 434, 439 (1996); see
also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy
v. Derwinski, 1 Vet. App. 78, 81 (1990).
In order for a claim of entitlement to service connection to
be well grounded, there must have been presented competent
evidence of a current disability; a disease or injury which
was incurred in service, and a nexus between the disease or
injury and the current disability. Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.
1996)(table); see Watai v. Brown, 9 Vet. App. 441, 443
(1996). In ascertaining whether a claim is well grounded,
the truthfulness of evidence proffered in its support is
presumed. King v. Brown, 5 Vet. App. 19, 21 (1993).
A claim for secondary service connection is subject to the
well-groundedness requirement of 38 U.S.C.A. § 5107(a). See
Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992); see also
Velez v. West, 11 Vet. App. 148, 158 (1998); Locher v. Brown,
9 Vet. App. 535, 538-539 (1996); Libertine v. Brown, 9 Vet.
App. 521, 523 (1996). In order to establish a well-grounded
claim of secondary service connection, there must be evidence
of the claimed disability; a service-connected disease or
injury; and a nexus, established by competent medical
evidence, between the two. Reiber v. Brown, 7 Vet. App. 513,
516-517 (1995).
A claim for an increased rating is regarded as a new claim
and is subject to the well-groundedness requirement of 38
U.S.C.A. § 5107(a) (West 1991). In order to present a well-
grounded claim for an increased rating of a service-connected
disability, a veteran need only submit his or her competent
testimony that symptoms, reasonably construed as related to
the service-connected disability, have increased in severity
since the last evaluation. See Proscelle v. Derwinski, 2
Vet. App. 629, 631-2 (1992); see also Jones v. Brown, 7 Vet.
App. 134 (1994).
Evaluation of the evidence
The truthfulness of evidence is presumed in determining
whether a claim is well grounded. Meyer v. Brown, 9 Vet.
App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21
(1993).
Once a claim has been determined to be well grounded, it is
the Board's responsibility to evaluate the entire record.
38 U.S.C.A. § 7104(a). When there is an approximate balance
of positive and negative evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§
3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990), it was held that "a veteran need only demonstrate
that there is an 'approximate balance of positive and
negative evidence' in order to prevail." To deny a claim on
its merits, the preponderance of the evidence must be against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Entitlement to a disability rating greater than 30 percent
for the residuals of an injury to the left ankle
The appellant is seeking a disability rating in excess of the
currently assigned 30 percent under 38 C.F.R. § 4.71a,
Diagnostic Codes 5010 [traumatic arthritis]
And 5270 [ankylosis of ankle].
Factual background
A request for an increased rating must be viewed in light of
the entire relevant medical history. See 38 C.F.R. §§ 4.1,
4.41 (1998); Peyton v. Derwinski, 1 Vet. App. 282, 287
(1991).
The appellant's service medical records reflect that in
August 1979, he sustained a closed pronation external
rotation fracture of the left ankle with an oblique fracture
of the fibula while playing football. He underwent an open
reduction and internal fixation of the fracture. In December
1979, the internal fixation device was removed. Following a
September 1983 service department medical board, the
appellant was diagnosed to have moderately severe post-
traumatic arthritis of the left ankle, and he was unable to
perform his duties. In October 1983, the appellant was
discharged due to physical disability.
By rating decision dated in September 1981, service
connection was granted for post-traumatic arthritis of the
left ankle; a 10 percent disability evaluation was assigned.
By rating decision dated in August 1985, the assigned
disability rating was increased to 20 percent. The appellant
sought an increased disability rating for his disorder in
January 1992. He then complained that he was having constant
pain, as well and swelling, weakness, and "popping" of the
joints that was causing him to miss work.
In a January 1992 letter, Dr. M.J.L. reported that the
appellant was continuing to have left ankle discomfort. He
was then noted to have moderate swelling about the ankle
without swelling over the dorsum. Exquisite tenderness was
noted on all attempted dorsiflexion and plantar flexion, and
inversion and eversion were impossible to accomplish.
Radiographic examination revealed increased degenerative
changes in the dome of the talus and in the tibial articular
surface. The appellant was diagnosed to have post-traumatic
synovitis and degenerative changes of the left ankle.
In a letter dated in April 1992, E.G.E., M.D., an
orthopedist, reported that dorsiflexion of the appellant's
left ankle was limited to 100 degrees, and plantar flexion
was to 15 degrees. There was no definite instability noted.
The examiner observed that this was "an acceptable range of
motion" in the ankle joint, but that pain from the condition
could be expected to increase. Dr. E.G.E. opined that the
appellant had "approximately 40% disability concerning the
function of this leg."
Radiographic examination found the old fracture of the distal
fibula and tibial area to be "long since well(-)healed."
Moderate to severe degenerative arthritis changes were noted,
particularly in the talotibial joint with narrowing of the
joint space and erosion of the cartilage with minimal
osteophyte formation. Dr. E.G.E. opined that the appellant
was disabled from climbing, stooping, crawling or excessive
use of the ankle, and that he would be "inhibited" from
being on the ankle for more than 4 to 6 hours per day. The
physician further observed that the appellant would not be
able to use machinery involving the use of the ankle and
foot.
At a May 1992 personal hearing, the appellant testified in
substance that the major problem that he had with his left
ankle was constant pain and swelling. He stated that he
sometimes fell when his foot would twist to the side. He
stated that he was once informed by a physician that his
ankle was ankylosed, and that he used a commercially
available ointment to loosen it. He stated that his ankle
hurt anytime he moved it, and the pain would waken him. He
stated that his ankle joint would pop, and that he was unable
to carry items of a certain weight. He stated that in his
job of stocking shelves, he had to sit on the floor while he
performed his work. The appellant testified that he had 12
years of education. At the time of the hearing, the
appellant was using a cane, which he reported he used mostly
during the day.
In a July 1992 treatment note authored by Dr. E.G.E., the
physician reported that the appellant's ankle was not
ankylosed, although he had considerable degenerative
arthritic changes, particularly in the talotibial joint. The
physician further observed that the appellant would require
surgical ankylosis or fusion of the talotibial joint in the
future, and that the appellant was "actually disabled due to
motion in the ankle joint." In an October 6, 1992 note, Dr.
E.G.E. observed that the appellant was then unable to work,
and that he required surgical fusion of the left ankle.
In October 1992, the appellant underwent tibiotalar fusion.
The hospitalization report authored by J.T., M.D., reflects
that the was instructed that he would be totally and
temporarily disabled, and that his recuperation would require
a period of approximately 12 weeks of strict non-weight-
bearing activity. It was also noted that progressive weight
bearing would follow subsequent to that period, depending
upon the appellant's clinical course of recovery.
In a January 1993 VA treatment note, a VA orthopedic surgeon
reported that the appellant would be 100 percent disabled
from October 1992 to March 1993. The physician further
observed that at that point, the appellant would be cleared
for return to "work (-) full duty."
In a January 1993 statement, Dr. E.G.E. reported that he had
reviewed recent radiographic studies of the appellant's left
ankle and noted fusion had occurred at the talotibial fibula
joint. Healing of the osteotomy was also noted with new bone
formation in the distal fibular region. He opined that
sufficient time had not elapsed for recovery. Dr. E.G.E.
further observed that the appellant's past employment had
effected his ankle and that the appellant's left ankle
condition had been effected over the years by any type of
excessive use of the joint. He observed that any occupation
requiring heavy lifting, climbing, stooping, or bending would
obvious aggravate the already impaired joint. As to the
appellant's then-present condition, he observed that fusion
was occurring, and that the appellant was then unable to be
on his feet, and that he was disabled. He further observed
that this disability would improve with continued fusion, but
that the appellant would still have an impairment due to a
stiff ankle.
In a February 1993 treatment note authored by an employee of
"Podiatry Associates, P.A.," it was noted that the
appellant was unable to perform heavy work, standing and
repeated stress to the left ankle, and that it would be
approximately 4 to 6 months before the appellant could return
to light duties.
The appellant underwent a VA physical examination in February
1993. It was noted that subsequent to the appellant's
October 1992 left ankle fusion, he had been partial weight
bearing beginning at the end of November 1992, and that in
January 1993 he had become weight bearing as tolerated. It
was also noted that the appellant was continuing to
participate in vocational rehabilitation and that he was
using a cane. The appellant complained of continued pain as
well as swelling and an inability to perform heavy lifting as
was required by his job. There were noted no wound-related
problems from the surgical procedure. A well-healed medial
and lateral scar was noted at the distal aspect of the
anterior tibia, as well as a palpable screw with a large
amount of subcutaneous tissue covering the screw. There was
no erythema noted. Dorsiflexion of the left ankle was less
than 5 degrees, inversion was to zero degrees and eversion
was to 15 degrees.
The examiner observed that the appellant's weight bearing had
progressed since his surgery in October of the previous year.
He commented that the surgery appeared to have been
successful with a "good solid fusion mass noted both
clinically and on x-rays." The examiner observed that
although the appellant could not perform a job requiring
heavy lifting, he could perform a job not requiring such duty
or climbing heights. The examiner further opined that based
upon his review of the appellant's radiographic studies and
clinical file, the appellant "should be full weight bearing
at this time and probably only needs a cane for long
distances."
In a May 1993 VA medical record, it was noted that the
appellant was then able to return to work, but that he should
not perform heavy lifting or duties which required heavy
manual labor until further notice. The author of the note
further opined that the appellant should not then return to
his "regular job," and that he would benefit from
retraining by vocational rehabilitative services.
The appellant underwent a VA radiographic study of his left
ankle in July 1994. The previously inserted surgical screws
were noted to be without evidence of penetration outside the
stabilized ankle. The diagnostic impression was that there
was continued sclerosis about the old fracture and fusion
site with no evidence of a current bone destructive process
and probable improving disuse osteoporosis of the mid foot
tarsal bones.
In a May 1995 radiographic examination, there was noted
complete ankylosis of the tibiotalar joint, and an old healed
fracture of the proximal portion of the distal fibula.
In an October 1996 VA medical treatment note, the appellant
was noted to have complained of "occasional" left ankle
discomfort. He reported that his ankle symptoms did not
interfere with his sleep, but that weather changes made his
ankle more uncomfortable. Upon physical examination, a well-
healed incision and minimal tenderness were noted.
Radiographic examination revealed "excellent alignment" of
the fusion site.
At a March 1997 Board hearing, the appellant testified in
substance that
following the surgical fusion, he was unable to place his
foot flatly on the floor and that it remained with a slight
upward tilt. He stated that he could bend his toes, but not
his foot upward, and that he always wore a brace and used a
cane. He stated that he experienced burning pain in his left
ankle, and that he took three types of medication. He stated
that he could walk about two blocks before having to rest for
10 to 15 minutes. He said that physicians informed him that
he was unable to do prolonged standing, walking, bending,
stooping or lifting weights.
In a June 1997 statement, G.W.D. reported that he was the
appellant's supervisor when the appellant was employed as a
stockman until October 1992. Mr. D. stated that the
appellant resigned from his position due to an inability to
perform duties involving long hours of standing, bending and
stooping.
The appellant underwent a VA physical examination in July
1997. The appellant reported increasing left ankle and foot
pain over the course of the previous three years. Some
atrophy of the left lower calf muscle was noted, which was
assessed by the examiner as being attributable to a favoring
of the left leg. Position of the ankle was noted to be
neutral dorsiflexion, plantar flexion and neutral varus and
valgus. The left ankle had no motion. The appellant
demonstrated dorsiflexion and plantar flexion to zero degrees
at the ankle joint. Movement as to both caused discomfort at
the junction of the mid-foot and the hind foot.
Approximately five degrees of inversion was noted, which
caused some pain and zero degrees of eversion of the subtalar
joint. It was noted that any motion of the subtalar joint
caused pain.
The diagnostic impression was that the appellant status post
left ankle fracture with increasing symptoms of pain with
decreased motion of the subtalar, talonavicular and
talocuboid joints. The examiner observed that there was a
slight chance of having some slight chronic osteomyelitis in
the left ankle, although present examination did not show
this process.
At the January 2000 Board hearing, the appellant stated that
he used a brace when he went on long walks, and he was
experiencing pain both in his leg and ankles. He said that
he could walk about a block to a block and a half before the
pain would increase. He said that after walking about two
blocks, the pain would force him to stop. At the hearing,
the appellant submitted an October 1998 report authored by
P.M., M.D.. Although the report primarily relates to the
appellant's back disorder, the Board observes that Dr. P.M.
found that radiographic examination of the appellant's left
ankle revealed "severe degenerative changes," and that the
bones of the appendage appeared osteopenic.
In a February 2000 letter authored by C.N.B., M.D., a
neuroradiologist, the appellant was reported to have a
"severe" left ankle disorder with osteoporosis, swelling, a
positive bone scan, and degenerative changes on radiographic
study. Atrophy of the calf was also noted.
Relevant law and regulations
The law and regulations generally pertaining to increased
rating claims have been set out above.
Schedular criteria
The appellant's left ankle disorder is currently rated as 30
percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes
5010-5270.
Under Diagnostic Code 5010, arthritis due to trauma and
substantiated by X-ray findings is rated as degenerative
arthritis under Diagnostic Code 5003. Under Diagnostic Code
5003, degenerative arthritis established by X-ray findings is
rated on the basis of limitation of motion under the
appropriate Diagnostic Codes for the specific joint or joints
involved.
Under Diagnostic Code 5270, which applies to ankylosis of the
ankle, a 20 percent rating is warranted if plantar flexion is
less than 30 degrees. In plantar flexion between 30 and 40
degrees or dorsiflexion between 0 and 10 degrees, a 30
percent evaluation is warranted. In plantar flexion at more
than 40 degrees, or in dorsiflexion at more than 10 degrees,
or with abduction, adduction, inversion, or eversion
deformity, a 40 percent evaluation is warranted.
DeLuca considerations
The evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40, and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portrays the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
Analysis
Initial matters - well groundedness of the claim/duty to
assist
As is noted above, a claim for an increased rating is subject
to the well-groundedness requirement of 38 U.S.C.A. §
5107(a). A well-grounded claim for a disability rating
greater than assigned may be found when the veteran's own
competent testimony, when presumed credible, indicates that
the symptoms of the service-connected disorder have increased
in severity since the last evaluation. See Proscelle, supra.
The appellant has stated that the symptoms of his service-
connected disability have increased. The Board thus concludes
that the appellant has presented a well-grounded claim for an
increased rating for his service-connected disorder.
The finding that a claim is well grounded triggers VA's duty
to assist the appellant in the development of his claim. In
this case, there is ample medical and other evidence of
record. The appellant has been given the opportunity to
present evidence and argument in support of his claim. The
Board believes that the evidence has been developed in
conformity with the instructions contained in its April 1997
remand. Accordingly, the Board will proceed to adjudicate
the claim.
Discussion
During the July 1997 VA medical examination, the appellant's
left ankle disorder was noted to have resulted in "neutral"
dorsiflexion, plantar flexion, varus and valgus - the left
ankle had no motion and was noted to be at zero degrees at
the ankle joint. Given these findings, the appellant's left
ankle disorder cannot be said to encompass symptoms ankylosis
of plantar flexion to more than 40 degrees; or dorsiflexion
at more than 10 degrees or other movement amounting to
abduction, adduction, inversion, or eversion deformity within
the meaning of 38 C.F.R. § 4.71a, Diagnostic Code 5270.
The Board has considered the application of 38 C.F.R. §§ 4.40
and 4.45, which have been reviewed above. The record
includes lay statements, both from the appellant and his
former work supervisor, that the ankle disorder is
characterized by excess fatigability on use. In particular,
the appellant and his former work supervisor have reported
that that the appellant is unable to perform prolonged
standing, walking, bending, stooping or lifting weights in
the context of discussing his left ankle disorder.
These reports appear to be corroborated by the clinical
evidence of record. Atrophy of the calf was indicated in
July 1997, and any movement of the foot caused discomfort.
Although the ankle was noted to be without movement, attempts
at inversion and eversion caused pain.
Most critically to the Board's disposition, the most recent
privately obtained medical opinions indicate that the
appellant's left ankle disorder is characterized by a severe
impairment and possibly worsening symptomatology. In
particular, the late reports authored by Dr. P.M. and Dr.
C.N.B. finding "severe degenerative changes" and the
appearance of osteoporosis is sufficient in the Board's view
to place the state of evidence in relative equipoise as to
functional loss and pain encompassing the requisite symptoms
for the assignment of a 40 percent disability rating. See
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Since 40 percent is the highest disability rating available
under 38 C.F.R. § 4.71a, Diagnostic Code 5270, additional
disability cannot be assigned under the provisions of
38 C.F.R. §§ 4.40 and 4.45. In Johnston v. Brown, 10 Vet.
App. 80, 85 (1997), the Court determined that if a claimant
is already receiving the maximum disability rating available
based on symptomatology that includes limitation of motion,
it is not necessary to consider whether 38 C.F.R. § 4.40 and
4.45 are applicable.
Accordingly, for the reasons and bases expressed above, a 40
percent disability rating is granted for the appellant's
service-connected left ankle disability.
Extraschedular rating
The appellant has requested that the Board refer this matter
for rating on an extraschedular basis under 38 C.F.R.
§ 3.321(b)(1).
The Court has held that the question of an extraschedular
rating is a component of the veteran's claim for an increased
rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996).
VAOPGCPREC 6-96 held that the Board may address the matter of
an extraschedular rating, provided that the RO has fully
adjudicated the issue and followed appropriate appellate
procedure. See also Floyd v. Brown, 9 Vet. App. 88, 95
(1996) [when an extraschedular grant may be in order, that
issue must be referred to those "officials who possess the
delegated authority to assign such a rating in the first
instance," pursuant to 38 C.F.R. § 3.321.
As noted in the Introduction, in its April 1997 remand, the
Board referred the matter of an extraschedular rating to the
RO. It appears that the RO has not addressed the matter of
an extraschedular rating. The Board has no recourse but to
again refer this matter to the RO.
Entitlement to a disability rating greater than zero percent
for depression, secondary to the service-connected left ankle
condition
Factual background
The appellant's service medical records are devoid of any
mention of complaints, symptoms, or diagnoses relative to the
appellant's psychological condition.
In a July 1994 VA treatment note, the appellant was reported
to be requesting mental health counseling due to nightmares,
insomnia, headaches and flashbacks associated with his
mother's death on July 21, 1993.
In a VA medical treatment note dated August 9, 1993, the
appellant's mother was reported to have died two weeks
previously. It was reported that the body of the appellant's
mother had undergone an autopsy, and the appellant was
reported to have witnessed the excavation of the grave. The
diagnostic assessment was that the appellant was experiencing
anxiety regarding his mother's death.
In an August 15, 1994 VA treatment medical record, it was
noted that the appellant had viewed his mother's body after
the performance of an autopsy conducted at the cemetery. It
was reported that the appellant was fearful of going to bed
at night, and that he was awakening in a "sweat-soaked
bed." The appellant reported that he was remaining awake
until 3:00 or 4:00 a.m., and that he had to become totally
exhausted to obtain any sleep.
In a VA medical treatment note dated September 1, 1993, it
was reported that during the funeral of the appellant's
mother, the internment proceedings were interrupted by an
unknown hospital to perform an autopsy. It was also noted
that the appellant had seen his mother's body. In an October
5, 1993 treatment record entry, the appellant was reported to
have "flashbacks" regarding his mother's death.
In a November 1994 VA treatment note, the appellant was
reported to be very upset due to continuous pain, as well as
being unable to provide for his family. He was reported to
be also depressed because of events relative to his mother's
burial. The examiner diagnosed the appellant to have PTSD
and depression.
At the March 1997 Travel Board hearing, the appellant stated
that he experienced depression because of the pain his in
ankle. He said that his daily activities consisted of siting
at home, watching television, and reading.
The appellant underwent a VA psychiatric examination in
December 1997, conducted by J.G., M.D. It was noted that the
appellant had received psychiatric treatment at the Savannah,
Georgia, VA outpatient clinic since 1995. The appellant
reported that he had been unemployed since 1993. He reported
that when he viewed his mother's body, her remains had not
been prepared for burial, and that she had a bag resting on
her chest containing her organs and scars from where her head
had been cut open during the post-mortem examination. The
appellant told the examiner that when he saw his mother's
body, his "hair turned white."
The appellant stated that since that time, he had experienced
"multiple problems" with sleep, including nightmares,
difficulty sleeping, and thrashing about in bed. He reported
that all of the nightmares involved death, and that he
avoided graveyards and funerals. The appellant also said
that he had feelings of being "less than a man" because he
could not provide for his family. He reported frequently
crying for no reason, and feelings of helplessness and
hopelessness. Although the examiner reported that the
appellant denied having visual hallucinations, he reported
that he sometimes thinks he saw dead people in the dark
around his home. He reported as "stressors" chronic pain
from his ankle, an inability to find a job, and low back
pain.
Upon clinical examination, the appellant was noted to be
alert and oriented, and he denied having suicidal or
homicidal ideation or delusions or hallucinations. He
reported having a panic examination once in the previous
year. Dr. J.G. commented that it was "not possible" that
the appellant's left ankle condition caused his major
depressive disorder, although it was likely that it could be
a "contributing factor" along with multiple other
stressors.
The examiner commented that while it was difficult to
attribute the appellant's major depressive disorder as
"purely coincidental," he believed that the appellant's
ankle condition contributed to his depression. The examiner
observed that the appellant met the diagnostic criteria under
the Diagnostic and Statistical Manual, 4th Edition, for a
single episode, major depressive disorder and PTSD. As to
the former, the examiner noted in part that symptoms "are
not better accounted for by bereavement." As to the PTSD,
the examiner commented that the appellant had met the DSM IV
criteria because, in part, he had been "exposed to a
traumatic event in which he witnessed or experienced actual
death or serious injury or a threat to the integrity of self
or others, and his response involved intense fear,
helplessness and horror.
The examiner observed that the appellant's current depressive
symptoms were significant enough to lead him to suicidal
ideation at times, and they interfered with his interest as
well as pleasure in social activities in addition to chronic
pain and physical disability from his left ankle fusion. He
observed that it was difficult for the appellant to find
gainful employment.
The appellant was diagnosed as follows:
Axis I: Major depressive disorder, single
episode,
moderate in severity.
PTSD
Axis II: None
Axis III: Hypertension
Low back pain
Status post-left ankle fusion
Gout
Axis IV: Severe
The examiner observed that the appellant had serious
impairment including suicidal ideation and serious impairment
in social and occupational functioning. He had "few
friends" and he was "unable to keep a job."
In a March 1998 addendum, Dr. J.G. observed that the
appellant's left ankle condition "certainly contributes" to
his depression and that there were other multiple factors to
consider. The examiner stated that in addition "as a
contributing factor" to his depressed symptoms was the
appellant's diagnosed PTSD. The physician further stated
that the appellant's left ankle condition contributed
"approximately 40 to 50 percent of his depressive episode,"
and that if the left ankle symptoms were alleviated, the
appellant would still be "somewhat depressed" due to PTSD
as well as the chronic low back pain.
In a May 1998 addendum, Dr. J.G. reiterated that excluding
the effects of the appellant's left ankle injury, the
appellant would be "somewhat depressed" given his diagnosed
PTSD and chronic pain. He stated that with the effects of
the appellant's ankle injury, the appellant's depressive
symptoms were "at least 40-50 percent worse." He also
reiterated the multi-axial diagnosis of December 1997.
The appellant underwent a VA psychiatric examination in
September 1998, conducted by S.R., M.D. The physician
focused his inquiry on the establishing a "more clear time
line" in the relationship between he ankle injury, the
development of chronic pain, and depression. The appellant
reported that following his in-service ankle injury, he was
discouraged by having to abandon a military career, but that
he did not have any clear depressive symptoms. Dr. S.R.
found it important that from 1992 to 1994, the appellant did
not have any depression, and that he reported being socially
active. The physician noted that the "pivotal event" in
the appellant's life may have been the viewing of his
mother's unprepared body, and that since that time he had
clear depressive symptoms and PTSD.
Dr. S.R. opined that the appellant's depression was
"probably independent" of his left ankle injury, and that
the foot injury or its chronic pain was a significant
contributing factor to the onset of the appellant's
depression. He noted that the appellant only began to have
depressive symptoms in 1994. Dr. S.R. noted that although a
person is depressed, any problem is more difficult to
tolerate, and can often become the focus of the depression
and that the depression therefore exacerbates the prior
problem. The examiner opined that the appellant's left ankle
injury did not significantly contribute to his depression,
and that "no more than 10 percent could be contributed,"
and that his depression would be as severe without any ankle
injury at all, or very nearly so."
By rating decision dated in October 1998, service connection
was granted for the degree of the diagnosed depression
aggravated by the service-connected left ankle condition. A
zero percent disability evaluation was assigned.
During a January 2000 Board hearing, the appellant stated
that during a VA psychiatric examination, he was not asked
about the pain he was experiencing, but only about the death
of his mother. He stated that had he been asked, he would
have told the examiners that he used "numerous" pills, and
that he was using morphine to control the pain. He said that
the pain sometime made him feel "less than a man," and he
could not bear it. He said that he had trouble sleeping, and
got about three to four hours of sleep every night.
The appellant proffered a copy of a chapter of the American
Medical Association's ("AMA") Guides to the Evaluation of
Permanent Impairment," 4th edition (generally referred to
hereafter as "Guides"); a copy of an article in the January
2000 issue of The Journal of the American Medical
Association; and a copy of a pamphlet entitled "Disability
Evaluation Under Social Security." To avoid duplication
here, the information contained in this material is discussed
in the Board's analysis, below.
The Board referred certain questions pertaining this issue to
an independent medical expert. See 38 U.S.C.A. § 7109;
38 C.F.R. § 20.901(d). In July 2000, the Board received an
expert medical opinion authored by C.B.T., M.D. In relevant
part, Dr. C.B.T. reported that there was no method of
apportionment for the assignment of percentages of disability
arising from multiple mental disorder diagnoses. She pointed
out that the under the Diagnostic and Statistical Manual, 4th
Edition, the Global Assessment of Functioning Score (GAF) is
assigned based on the physician's assessment of the patient's
overall level of functioning. She added that a "cautionary
statement" in DSM-IV admonished that "[t]he clinical and
scientific considerations involved in categorization of these
conditions as mental disorders may not be wholly relevent
[(sic] to legal judgements, [sic] for example, that take into
account such issues as individual responsibility, disability
determination and competency." She further observed that
the DSM-IV did not provide for such an apportionment, and
that the GAF score was relevant when physicians were asked
to ascertain the patient's present functional state.
Dr. C.B.T. further observed that a relevant standard by which
to determine to what extent a physical injury contributes to
a mental disorder is that used by psychiatrists in
determining the amount of psychic damages secondary to trauma
in tort claims.
The physician summarized this scale as follows:
1. Sole Cause
2. Major Precipitating Event
3. Aggravating Factor
4. Minor Factor
5. Unrelated
In applying this scale to the appellant's case, Dr. C.B.T.
found that the examination by Dr. S.R. in September 1998
"most clearly addresses the issues and in fact utilizes
accepted language and process." She noted that Dr. S.R.
determined that the appellant's viewing of his mother's body,
post autopsy, was the major contributing factor in the
development of the appellant's depression, and that his
depression and PTSD would have most likely occurred even if
he had never sustained the ankle fracture.
Dr. C.B.T. further observed that from her examination of the
record, the appellant's physical injury occurred in 1979, and
there were no reported psychiatric symptoms until 1993. She
opined that the appellant's non-service-connected PTSD and
depression were "unrelated" to the service-connected left
ankle disorder.
Relevant Law
The Allen rule
A portion of the appellant's depressive disorder was granted
service connection on the basis that it had been aggravated
by his service-connected left ankle disorder. Entitlement to
the benefit was granted on the basis of the Court's ruling in
Allen v. Brown, 7 Vet. App. 439 (1995) .
In Allen, the Court observed that under a broad
interpretation of 38 C.F.R. § 3.310(a), as well as
38 U.S.C.A. §§ 1110, 1131 and 1701, the term "disability"
meant any impairment of earning capacity, and such definition
of disability mandated that any additional impairment of
earning capacity resulting from an already service-connected
condition, regardless of whether or not the additional
impairment is itself a separate disease or injury caused by
the service-connected condition, shall be compensated. The
Court ruled that:
"[W]hen aggravation of a veteran's non-
service-connected condition is proximately due
to or the result of a service-connected
condition, such veteran shall be compensated
for the degree of disability (but only that
degree) over and above the degree of disability
existing prior to the aggravation. Cf.
38 C.F.R. § 3.322 (1994) (in compensating for
aggravation of a pre-service disability by
active service, it "is necessary to deduct from
the present evaluation the degree, if
ascertainable, of the disability existing at
the time of entrance into active service, in
terms of the rating schedule . . ."
Allen, 7 Vet. App. at 448 (Italics added); see Boyer v. West,
12 Vet. App. 142, 144
(1999) [observing that "Allen indicates only that when a
service-connected injury causes an increase in disability to
a non-service-connected condition, such an increase is to be
treated as if service connected].
The Rating Criteria
The appellant's claim arose during the March 1997 Board
hearing. The appellant's claim must therefore be adjudicated
under the rating schedule for mental disorders under 38
C.F.R. § 4.130, effective November 7, 1996. Cf. Karnas v.
Derwinski, 1 Vet. App. 308 (1991) [where the law or
regulation governing the case changes after a claim has been
filed or reopened, but before the administrative or judicial
appeal has been concluded, the version most favorable to the
veteran will apply].
As to the criteria that must be approximated for each level
of rating, the Schedule reads as follows:
100% Total occupational and social impairment,
due to such symptoms as: gross impairment in
thought processes or communication; persistent
delusions of hallucinations; grossly
inappropriate behavior; persistent danger of
hurting self or others; intermittent inability
to perform activities of daily living
(including maintenance of minimal personal
hygiene); disorientation to time or place;
memory loss for names of close relatives, own
occupation or own name.
70% Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations judgment, thinking, or
mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere
with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the
ability to function independently,
appropriately and effectively; impaired impulse
control (such as unprovoked irritability with
periods of violence) spatial disorientation;
neglect of personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a worklike
setting); inability to establish and maintain
effective relationships.
50% Occupational and social impairment with
reduced reliability and productivity due to
such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped
speech; panic attacks more than once a week;
difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g.
retention of only highly learned material,
forgetting to complete tasks); impaired
judgment; impaired abstract thinking;
disturbances of motivation and mood; difficulty
in establishing effective work and social
relationships.
30% Occupational and social impairment with
occasional decrease in work efficiency and
intermittent periods of inability to perform
occupational tasks (although generally
functioning satisfactorily, with routine
behavior, self-care, and conversation normal),
due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly
or less often), chronic sleep impairment, and
mild memory loss (such as forgetting names,
directions, recent events).
10% Occupational and social impairment due to
mild or transient symptoms that decrease work
efficiency and ability to perform occupational
tasks only during periods of significant
stress, or symptoms controlled by continuous
medication.
0% A mental condition has been formally
diagnosed, but symptoms are not severe enough
either to interfere with occupational or social
functioning or to require continuous
medication.
38 C.F.R. 4.130, Diagnostic Codes 9434 (1999).
Because the appellant's claims have been in continuous
appellate status since their original assignment of service-
connection in October 1998, the evidence to be considered
includes all evidence proffered in support of the original
claim. Fenderson v. West, 12 Vet. App. 119 (1999).
Analysis
As is discussed above, in order to present a well-grounded
claim for a disability rating greater than assigned, a
veteran need only submit his competent testimony that the
symptoms of the disorder are more severe than was noted in
the last medical examination. The appellant's contentions
are so construed, and the Board therefore finds that the
appellant's claim is well-grounded within the meaning of
38 U.S.C.A. 5107(a).
The appellant makes no contention as to the specific
disability rating that should be assigned for that degree of
depression aggravated by his service-connected left ankle
disorder. Instead, the appellant argues that such an
apportionment is against the established rating policy and
procedure of VA, and contrary to mental health practice.
See, e.g., January 2000 Board hearing. The thrust of the
appellant's contentions appears to be that it is legally
inappropriate and practically impossible to attribute only a
portion of a psychiatric disability to a specific cause (in
this case, the service-connected left ankle disability) and
that the entire disability should be rated as if service-
connected.
Having considered the appellant's argument, his submissions,
and the medical evidence, the Board finds that such
apportionment is not only appropriate and possible, but is
mandated by applicable statute, regulation and case law.
Further, the Board finds that the medical evidence of record
is sufficient to properly evaluate the appellant's mental
disability, particularly with reference to that degree of
disability which has been aggravated by his service-connected
left ankle disorder. The Board will discuss each of these
sub-issues in turn.
i. Apportionment Required by Law
In support of his contention that the entirety of his
psychiatric impairment should be attributed to his service-
connected left ankle disorder, the appellant through his
representative has cited the Court's decision in Cohen v.
Brown, 10 Vet. App. 128 (1997). See e.g., January 2000 Board
decision and Informal Brief of Appellant in Appealed Case,
dated August 2, 2000. In order to fully address the
appellant's contentions, the Board finds that a brief review
of the Court's salient language in Cohen is necessary.
In Cohen, the Court noted in the context of a claim of
entitlement to service connection for PTSD that under the
then recently issued DSM-IV, the previously applicable
requirements (in DSM-III-R) that a stressor event be
"outside the range of human experience" and "markedly
distressing to almost anyone" had been deleted. In its
stead, the revised provisions as set forth in DSM-IV required
was that the person concerned be "exposed to a traumatic
event" within certain parameters and that the person's
response must have involved intense fear, helplessness or
horror. Cohen at 141.
The Court pointed out that under the revised criteria, PTSD
would be treated as would be a physical illness for purposes
of VA compensation, because a predisposition towards a
disability would not bar entitlement to service connection.
The Court analogized this finding to well-established
principle of tort law known as the "eggshell skull" rule,
that a tortfeasor "takes the plaintiff as he finds him, "
and that "it is a settled principle of tort law that when a
defendant's wrongful act causes injury, he is fully liable
for the resulting damage even though the injured plaintiff
had a preexisting condition that made the consequences of the
wrongful act more severe than they would have been for a
normal victim." (citations omitted); (italics added). Id.
Examination of the Court's language as relied upon by the
appellant reveals that the Court's discussion of the
"eggshell skull" principle is inapposite to the essential
question of this matter: the degree of impairment caused by
the appellant's service-connected left ankle disorder upon
his non-service-connected mental disorder. Indeed, it may be
said that the Cohen language cited by the appellant stands
for the proposition that one who causes injury is responsible
for resulting damages. In that respect, its meaning is
reiterative of the Court's pronouncement in Allen that only
that degree of aggravation of a non-service-connected
disorder which is caused by a service-connected disorder is
to be compensated.
Having observed that the Court's ruling in Allen and
inferentially in Cohen mandates that only that portion of the
appellant's non-service-connected disorder that has been
aggravated by the service-connected disorder is to be
compensated under law, the issue remains whether such an
apportionment may be performed.
The Board notes that in Mittleider v. West, 11 Vet. App. 181
(1998), the Court remanded the veteran's claim of entitlement
to an increased rating for PTSD, when the Board failed to
discuss whether it considered the impairment resulting from
the appellant's non-service-connected personality disorders
when evaluating the veteran's PTSD. In Mittleider, as here,
the veteran argued that under the then recent revisions to
the schedule of ratings for mental disorders [(61 Fed.Reg.
52698 (Oct. 8, 1996)], "when it is not possible to separate
the effects of the [service-connected condition and the non-
service-connected condition," the provisions of 38 C.F.R.
§ 3.102 mandated that reasonable doubt on any issue was to be
resolved in the veteran's favor, and that all signs and
symptoms be attributed to the service-connected condition.
Mittleider, 11 Vet. App. at 182. (italics added). Absent
from the Mittleider decision was any language indicating that
an apportionment was not appropriate under law, assuming that
such could be accomplished.
The Board has also considered the appellant's contention that
VA has established, as a matter of policy, that it will not
apportion impairment resulting from one psychiatric
disability over another. In support of this contention, the
appellant has argued that during the pendency of publication
of the October 1996 revision of the Schedule, VA "was
advised it was not possible to apportion a degree of
disability between coexisting mental disorders and the
response was 'we don't do that.'" See Informal Brief of
Appellant, February 10, 2000, page 9. However, examination
of the material relied upon by the appellant clearly reflects
that it is VA's intention to evaluate the disability in its
whole (i.e., without apportionment between the service-
connected and the non-service-related impairment) and accord
the claimant the benefit of reasonable doubt under 38 C.F.R.
§ 3.102 "when it is not possible to separate the effects of
the conditions." See 61 FR 52698.
The Board concedes that evaluating a psychiatric disability
under the Court's mandate in Allen may be difficult.
However, difficulty alone is no justification for the Board
not attempting to assign a correct disability rating. See
Bierman v. Brown, 6 Vet. App. 125, 132 (1994): "In
attempting to justify its decision, the BVA notes that the
separate evaluation of appellant's neurological defects may
be complicated because those residuals may be related to his
non-service-connected disabilities. The potential difficulty
in evaluating appellant's neurological residuals, however,
cannot properly be the basis for depriving appellant of a
proper disability rating." In other words, the law requires
the Board to assign a rating under Allen notwithstanding the
difficulty of doing so.
Having concluded that apportionment of disability is thus
required and appropriate under the existing law, in
particular the precedential decision of the Court in Allen,
the Board now turns to the issue of whether the medical
evidence of record indicates that such action is feasible
from a practical standpoint.
ii Medical feasibility
It is now well-settled that in its decisions, the Board may
not rely upon its own unsubstantiated medical opinion.
Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7
Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994);
Colvin v. Derwinski, 1 Vet. App. 171 (1991). One of the
Board's principal roles is to evaluate all of the evidence of
record, in particular that expressing medical opinion. Such
an evaluation is to be based upon the data brought before the
medical expert, including examination of the patient, the
physician's knowledge and skill in analyzing the data, and
the medical conclusion that the physician reaches."
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As to
medical treatises, the Board must evaluate such evidence as
it does with respect to any other evidence on an individual
basis. See Wallin v. West, 11 Vet. App. 509, 512-513 (1998).
The Board has carefully examined the treatises and guides
proffered by the appellant in support of his contention that
an apportionment of disability resulting from the various
causes of his psychiatric disability may not be made. With
regard to the publication entitled Disability Evaluation
Under Social Security, the Board observes that there is
expressed in the publication no absolute bar relative to
apportionment. Additionally, the publication appears to
address the issue of determination of the overall level of
disability within that agency's practice, and is not
therefore relevant to consideration of law and regulations
applicable to VA. Cf. Collier v. Derwinski, 1 Vet. App. 413,
417 (1991).
The submitted American Medical Association Guide to the
Evaluation of Permanent Impairment does not bar consideration
of apportionment. In a highlighted portion, the extract
reflects that:
"A more persuasive argument is that, unlike
the situations with some organ systems, there
are no precise measures of impairment in mental
disorders. The use of precentages [sic]
implies a certainty that does not exist, and
the percentages are likely to be used
inflexibly by adjudicators, who then are less
likely to take into account the many factors
that influence mental and behavioral
impairment. Also, because no data exist that
show the reliability of the impairment
percentages, it would be difficult for Guides
users to defend their use in administrative
hearings. After considering this difficult
matter, the Committee on Disability and
Rehabilitation of the American Psychiatric
Association advised Guides' contributors
against the use of percentages in the chapter
on mental and behavioral disorders of the
fourth edition."
Extract at 14/301-302.
However, examination of the totality of the quoted section
reveals that its discussion relates to various categories of
measurable impairment of certain mental function, and not as
to the source of the disability. The article pointed out
that in a previous edition of the Guides, there were noted
five classes of impairment of mental function with specified
ranges encompassing assessments of "normal" to "severe"
impairment; and five ranges of ability to carry out daily
activities from "self sufficient" to "quite helpless."
Extract at 14/301. Following this discussion, the extract
provides an example of a woman who had been diagnosed to have
chronic paranoid schizophrenia, and was subsequently assessed
as being markedly impaired in "activities of daily living
and social functioning," and moderately impaired in
"ability to concentrate, maintain a reasonable pace, and
adapt to change."
The central issue addressed by the proffered article is not
germane to this matter, because there is no discussion
relative to the resulting severity of one diagnosed
psychiatric disorder as opposed to another. In this regard,
the article does not support the appellant's contention that
such an apportionment may not be made.
The appellant has also submitted a copy of an article found
in the January 2000 Journal of the American Medical
Association. The article is entitled Recommendations to
Guide Revision of the Guides to the Evaluation of Permanent
Impairment. The first page of the article previews the
discussion as addressing internal deficiencies in the Guides,
as well as deficiencies in the way in which worker's
compensation systems use the ratings. The article contains
nine recommendations for correcting these deficiencies.
However, the discussion in all of the recommendations is
premised upon the authors' view that there is a difference
between "functional impairment" and "disability." Within
this context, the article discusses the criteria that are
used for determining permanent and total impairment and their
deficiencies; the need for objective and comprehensive
criteria in ascertaining permanent impairment; the
desirability to achieve internal consistency, accessibility
and comprehensibility in evaluative criteria.
The article does not address ascertainment of the degree of
impairment resulting from one diagnosed psychiatric disorder
as opposed to another. In this regard, the article does not
support the appellant's contention that such an apportionment
may not be made.
Importantly, the evidence of record does not contain a
statement from any medical professional that such an
apportionment cannot be made. In response to this
contention the appellant raised during the January 2000 Board
hearing, in May 2000 the Board caused the appellant's claims
folder to be referred to a VA medical expert, Dr. C.B.T. The
Board has carefully examined the expert's opinion, received
in July 2000, as well as the appellant's response. Without
regard to the question as to whether the medical evidence
specific to this case has been sufficiently developed so that
an apportionment may be made, (discussed below), the Board
finds that Dr. C.B.T.'s opinion establishes that a medical
opinion can be rendered within accepted practice of the
medical community that satisfies the Court's directives in
Allen, and that the opinion itself sets forth a methodology
for obtaining such an opinion.
As to the issue whether the DSM-IV provides a method by which
an apportionment may be conducted, Dr. C.B.T.'s opinion
indicates that such a method is not provided because it is
not of relevance to any inquiry addressed by the DSM-IV. Dr.
C.B.T.'s opinion indicates that the DSM-IV is not concerned
with "the many causes or circumstances" impairing the
mental functioning of an individual, but is instead concerned
with the "overall level of functioning" as exemplified in
the GAF score. Indeed, her citation of the "cautionary
statement" admonishing practitioners that the DSM-IV "may
not be wholly relevant" to legal judgments, such as the
level of disability resulting from one diagnosis over
another, indicates that DSM-IV provisions may not be germane
to the Court's directives in Allen.
However, Dr. C.B.T.'s usage of the five point gradation scale
of "psychic damages secondary to trauma," and her
observation that it is "the most applicable process . . .
used by psychiatrists in determing (sic) the gradation of
psychic damages secondary to trauma in tort claims and other
like proceedings" is highly relevant to this inquiry. As
was alluded to by the Court in Cohen, mental health
professionals are experts and they are presumed to know the
standard of practice in the mental health community. Cohen,
10 Vet. App. at 140. In this instance, Dr. C.B.T.'s
observation that an applicable process is that used by
psychiatrists indicates that such a practice is already in
use in a legal setting, and her further observation that the
prior examination by Dr. S.R. "in fact utilizes accepted
language and process" compels the conclusion that such an
apportionment of disability is feasible.
iii. Apportionment under the evidence of record
Since the Board has determined that apportionment of that
degree of disability of a mental condition due to a service-
connected disability is both legally required and practically
feasible, remaining to this inquiry are the questions as to
whether the medical evidence in this case is sufficient to
apportion the disability resulting from the aggravation of
the appellant's non-service-connected depression and PTSD by
his service-connected left ankle disability, and if so, what
is the degree of such aggravation. As is noted above, other
than to argue for an evaluation on the basis that an
apportionment cannot be made, the appellant has not made any
contention regarding the specific disability evaluation to be
assigned.
The Board first turns to the December 1997 VA mental
disorders examination authored by Dr. J.G. The specific
inquiry then under consideration was whether the appellant's
left ankle disorder had caused a major depressive disorder.
Although the examiner concluded that it was not possible that
the left ankle condition had caused the appellant's major
depressive episode, it was likely that the left ankle
condition was a "contributing factor," but that there were
multiple "other factors that were to be considered. The
examiner then found that the appellant's depressive symptoms
lead to suicidal ideation "at times," and interference with
interest in social activities and difficulty in finding
gainful employment.
In commenting upon the effect of the appellant's "depressive
symptoms," the examiner did not distinguish between the
depression resulting from the appellant's viewing of his
mother's body, as opposed to that arising from his left ankle
disorder. Such a reading is evident in the examiner's
diagnosis of the appellant having a "single depressive
episode" of a major depressive disorder and PTSD in Axis I;
and "status post(-)left ankle fusion" in Axis III. [The
multiaxial system under the provisions of the Diagnostic and
Statistical Manual of Mental Disorders, 4th edition, is used
to assess "a different domain of information that may help
the clinician plan treatment and predict outcome." Under the
multiaxial system, the Axial delineation is: Axis I:
Clinical disorders; Other conditions that may be a focus of
clinical attention; Axis II: Personality disorders; mental
retardation ; Axis III: General medical conditions; Axis IV:
Psychosocial and environmental problems; Axis V: Global
assessment of functioning. See Diagnostic and Statistical
Manual, 4th edition, 25-31, American Psychiatric Association,
1994.]. Stated alternatively, the appellant's left ankle
disorder was then assessed as being a "general medical
condition."
Significant for the purposes of the Board's inquiry, the
examiner then assessed the appellant's GAF score to be 50,
thus indicating that the appellant had "serious symptoms"
of overall mental impairment. See Carpenter v. Brown, 8
Vet. App. 240, 242 (1995); [Observing that GAF is a scale
reflecting the "psychological, social, and occupational
functioning in a hypothetical continuum of mental health-
illness" under the DSM-IV, p.32.]. In part, GAF scores
ranging between 61 to 70 reflect some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, and has some meaningful
interpersonal relationships. Scores ranging from 51 to 60
reflect moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).
Scores ranging from 41 to 50 reflect serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social,
occupational or school functioning (e.g., no friends, unable
to keep a job). Carpenter, 8 Vet. App. at 242.
In a March 1998 addendum, Dr. J.G. opined that the
appellant's left ankle condition contributed "approximately
40% to 50% of his depressive episode". In May 1998, Dr.
J.G. reiterated his prior opinion, and again assessed the
appellant to have a GAF score of 50.
The Board observes that although Dr. J.G. then reported the
appellant did not have depressive symptoms prior to the left
ankle injury, the physician also did not note that the
appellant did not have depressive symptoms prior to viewing
his mother's body after an autopsy. Thus, to the extent that
the physician's report suggests his intimation that all of
the appellant's psychiatric impairment is related to the left
ankle disorder, his lack of comment as to the cause of the
original psychiatric disorder indicates that his opinion did
not fully account for the appellant's history as evidenced by
the record. The totality of the appellant's psychiatric
impairment cannot therefore, by this opinion alone, be
attributed to aggravation of the service- connected disorder.
In September 1998, Dr. S.R. opined that the appellant's left
ankle injury did not contribute significantly to his
depression, and that he would rate such aggravation at "less
than 10%" and opined that the appellant's depression would
be as severe or as nearly severe without any ankle injury.
Apart from her discussion of the means of apportioning the
psychiatric impairment resulting from aggravation of non-
service-connected ankle disorder, Dr. C.B.T.'s July 2000
opinion essentially concurred with that of Dr. S.R.
Juxtaposing these reports, the Board finds it significant
that both Dr. J.G. and Dr. S.R. noted that the appellant's
symptoms were characterized by diminished social activities,
difficulty sleeping, weight gain, and a loss of energy.
These observations are supported by the other evidence of
record, including the appellant's own accounts. The
appellant's March 1997 Travel Board hearing transcript
reflects that he limited his activities to staying at home,
watching television and reading. His diminished interest in
socializing and in other activities is exemplified by his
December 1997 report that he had feelings of hopelessness.
Most critically, the appellant has been consistently assessed
as having a GAF score of 50, indicating that he has "serious
symptoms" within the definition of DSM-IV.
Examination of the provisions of the rating schedule reveals
that these symptoms most closely approximate the requisite
findings for the assignment of a 50 percent disability rating
for depression and PTSD. As is noted above, the diagnostic
criteria for such an assignment in part include panic attacks
of a frequency of more than once a week, disturbances of
motivation and mood and difficulty in establishing and
maintaining effective work and social relationships. See
38 C.F.R. § 4.130, Diagnostic Code 9434 and General Rating
Formula for Mental Disorders.
However, the reports of the physicians would not,
irrespective of the source of the psychiatric impairment,
support the assignment of a 70 percent disability rating for
the appellant's depression and PTSD. See Fletcher v.
Derwinski, 1 Vet. App. 394 (1991). Although the appellant
has reported suicidal ideation, he has not reported and there
is no evidence of obsessional rituals which interfere with
routine activities; intermittently illogical, obscure or
irrelevant speech, "near-continuous" panic or depression
that affects his ability to function independently,
appropriately, or effectively, disorientation as to time,
place, or person, neglect or personal hygiene, or of an
inability to establish and maintain effective relationships.
See 38 C.F.R. § 4.130, Diagnostic Code 9434 and General
Rating Formula for Mental Disorders.
In accordance with the Court's ruling in Allen, the Board
must now proceed to ascertain from the medical evidence of
record what degree of impairment to the non-service-connected
mental disorder, but only that degree, was aggravated by the
service-connected orthopedic disorder. See Allen, 7 Vet.
App. at 448.
As is noted above, Dr. J.G.'s reports indicate that the
physician assessed the degree of psychiatric impairment
resulting from the appellant's service-connected ankle
disorder as being between 40 to 50 percent. Conversely, Dr.
S.R. rates the degree of aggravation as not more than 10
percent. The Board emphasizes that to the extent that Dr.
J.G., (and Dr. C.B.T.) both state or imply that the
appellant's non-service-connected psychiatric disorder was
not aggravated by the service-connected disorder, such is not
the issue present before the Board and their opinions are not
relevant. Instead, because aggravation has already been
established, it is the degree of aggravation that must be
ascertained.
Examining these reports, the Board notes the fact that Dr.
J.G. was the first examiner to render an opinion on the issue
of the degree of psychiatric disability resulting from
aggravation by the service-connected disorder. His
observations as to the degree of disability resulting from
aggravation are the most contemporaneous of record with the
diagnosis then rendered, and the appellant's essential
symptoms have not altered since that time as evidenced by the
consistent GAF score. Although Dr. S.R. opined that the
appellant's psychiatric symptoms were aggravated by his
service-connected disorder to the extent of 10 percent or
less, the Board is of the opinion that Dr. J.G.'s opinion in
its whole is based upon a more extensive knowledge of the
appellant's symptoms.
As is noted above, if the whole of the appellant's
psychiatric disability were to be assessed, the evidence
would support the assignment of a 50 percent disability
rating under the Schedule. Dr. J.G.'s assessment of the
appellant's service-connected mental disorder being up to 50
percent aggravated by his service-connected left ankle
disorder logically leads to the conclusion that approximately
half of such a disability rating, in this case 30 percent, is
appropriately assigned.
Accordingly, a 30 percent disability evaluation is assigned
for the degree of aggravation of the non-service-connected
depression and PTSD caused by the appellant's service-
connected left ankle disability.
As a final matter with respect to this issue, the Board
believes that the 30 percent rating should be assigned as of
March 6, 1997, the date of the first hearing before the
undersigned, when the claim of entitlement to VA benefits for
depression was initially raised. See Fenderson, supra.
Entitlement to service connection for a low back condition,
secondary to the service-connected left ankle condition
Factual Background
The appellant's service medical records are devoid of any
mention of complaints, symptoms, or diagnoses relative to the
appellant's back.
During a VA physical examination of February 1993, the
appellant reported a history of pain in the lower lumbar
region, but stated it did not radiate to the buttocks or
lower extremities. Upon clinical examination, there were
noted no postural abnormalities, and his back musculature was
normal. He was able to forward flex to 90 degrees and extend
his back to 40 degrees. Bilateral flexion was to 30 degrees,
and bilateral rotation was to 35 degrees. Mild pain was
noted upon palpation of mid L5 region.
In a February 1993 report of radiographic examination
conducted at the Beaufort Memorial Hospital, the appellant
was noted to have possible early disc space narrowing at L5-
S1 and sacralization of L5 on the left. The remaining disk
spaces were noted to be well preserved.
In May 1995, the appellant underwent a radiographic study of
his lumbosacral spine. Mild retrolisthesis of L4 on L5 was
noted. Disc spaces were noted to be otherwise well
maintained and no significant facet joint osteoarthritic
changes were present.
The appellant underwent a VA physical examination in December
1997. The appellant reported that while serving on active
duty in 1981, he injured his back during a training exercise,
but that he had no treatment for back pain at that time.
Upon clinical examination, the appellant was noted to have a
slow gait, but displayed a normal amount of standing time on
both the left and right foot. The examiner commented that a
radiographic study revealed the appellant's sacroiliac joints
to be unremarkable, and without evidence of scoliosis. The
appellant's overall alignment of his lumbar spine was
preserved and there was no evidence of disc space narrowing
or loss of vertebral height. An irregular bony configuration
of L4-L5 was noted, and was assessed by the examiner to be
likely related to the "harvesting" of his bone graft and no
due to any degenerative changes. There was no evidence of
degenerative joint disease of the facet joints.
The examiner further commented that it was likely that the
appellant's gait had alerted "somewhat secondary" to the
ankle fusion, but there was no medical evidence that could
direct relate an injury to an ankle as causing degenerative
changes to the back. The examiner opined that the appellant
had mechanical low back pain that was related to the muscles
in the low back. He concluded by observing that he did not
see the appellant's low back pain as being caused by his
ankle fusion.
The report of VA radiographic examination conducted in
December 1997 is prefaced by a clinical history including
"low back condition is result of left ankle fusion." The
report reflects that the appellant was found to have a
partial sacralization of the left transverse process at the
L5 region and prior bone harvesting of the left iliac blade.
At the January 2000 Board hearing, the appellant stated that
when he tried to keep stress from his left leg, he felt a
"tingle" in his back. At the hearing, the appellant also
submitted a copies of examination reports generated during
the course of his application for benefits administered by
the Social Security Administration. These include an October
1998 report authored by P,.M., M.D.; a November 1998 report
authored by J.D., a physical therapist; a November 1998
report authored by M.T.D., an orthopedist.
In a January 2000 letter, Dr. M.T.D. observed that the
appellant had degenerative lumbar spondylosis in his lower
lumbar disc and left lumbar radiculopathy radiating down the
left leg. He opined that an ankle fusion such as appellant's
altered the gait so that it "can definitely" exacerbate any
back problem.
In a February 2000 letter, C.N.B., a neuroradiologist,
reported that he had reviewed the appellant's VA claims
folder, including the service medical records. After doing
so, Dr. C.N.B. opined that the appellant had severe left
ankle pathology with osteoporosis, swelling and degenerative
changes as shown by radiographic studies and that he incurred
a lumbar spine disability - disk space narrowing and
degenerative joint disease, secondary to his left ankle
fusion.
Analysis
Initial matters
As was noted above, a valid assertion of secondary service
connection is subject to the well-grounded claim requirement
under 38 U.S.C.A. § 5107(a); Velez, 11 Vet. App. at 158;
Libertine, 9 Vet. App. at 523. In order to establish a well-
grounded claim of secondary service connection, there must be
evidence of the claimed disability; a service-connected
disease or injury; and a nexus, established by competent
medical evidence, between the two. Reiber, 7 Vet. App. at
516-517.
Having carefully considered all of the evidence of record
proffered in support of the appellant's claim of entitlement
to service connection for a low back disability and presumed
it credible, the Board finds that a well-grounded claim has
been submitted. The appellant has been diagnosed to have
both degenerative joint and degenerative disc disease of the
lumbar spine. Through the opinions of Dr. C.N.B. and Dr.
M.T.D., these disorders have been linked by competent medical
evidence to the appellant's service-connected left ankle
disorder. The three components of the Caluza - Reiber test
(present disability, service-connected disability and medical
nexus) having been met, the appellant's claim of service
connection for a low back disorder secondary to the service-
connected left ankle condition is well grounded.
As discussed above, having found that the appellant's claim
is well grounded does not end the Board's inquiry. Rather,
it places upon VA the duty to assist the appellant in the
development of the claim by obtaining relevant records which
could possibly substantiate the claim and conducting
appropriate medical inquiry. See 38 U.S.C.A. § 5107(a). The
Board has carefully reviewed the evidence of record, and
finds that the evidence presently of record is sufficient to
adjudicate this matter.
Discussion
The Board has scrutinized the medical records. Dr. C.N.B.
obviously made an extensive review of all record lay and
medical evidence. The report of his opinion reveals that Dr.
C.N.B. noted both the appellant's reported onset of low back
pain, as well as the onset and degree of the altered gait
resulting from the left ankle pathology. Dr. C.N.B.
concluded that there was a relationship between the
appellant's service-connected left ankle disability and his
back disability.
As to the medical bases for his opinion, the Board has
reviewed its context as well as the submitted extract of the
treaties Orthopaedics Principles and Their Application, by
S.L. Turek, M.D. In a highlighted portion (presumably so
marked by the appellant's representative), the treatise
reflects that an altered tilting of the pelvis is a
predisposing factor in the development of lumbosacral strain.
As evidenced by the opinion of Dr. M.T.D., as well as various
medical treatment records, the appellant's left ankle fusion
caused such an altered gait.
It therefore appears that significant medical opinion
evidence has been obtained that indicates that the
appellant's service-connected left ankle disorder has caused
an altered gait, and that the altered gait produced a low
back condition.
The Board is of course aware of other medical evidence, in
particular the opinion of the December 1997 VA examiner,
which does not support the proposition that the service-
connected left ankle disability caused the back problem.
However, the opinions of Drs. M.T.D. and C.N.B., taken
together, at least place the evidence in equipoise. The Board
will therefore apply the benefit of the doubt rule,
38 U.S.C.A. § 5107(b). Accordingly, service connection for a
low back condition is granted.
ORDER
A 40 percent disability rating for the residuals of an injury
to the left ankle is granted, subject to the regulations
governing the disbursement of monetary benefits.
A 30 percent disability rating for depression is granted,
subject to the regulations governing the disbursement of
monetary benefits.
Service connection for a low back disability is granted.
Barry F. Bohan
Veterans Law Judge
Board of Veterans' Appeals